Marlborough City Council president responds to OML complaint

Wednesday

Mar 12, 2014 at 12:07 AM

By Kendall HatchDaily News Staff

MARLBOROUGH – City Council President Patricia Pope dismissed an Open Meeting Law complaint over rules on electronic devices that media lawyers say puts the council in murky legal waters.Pope last month dismissed an Open Meeting Law complaint regarding a shift in how the City Council enforces a rule restricting electronic devices in council chambers, although media law attorneys said this week that the council stands in murky legal waters.The City Council in 2012 passed a rule stipulating that electronic devices, such as cell phones or iPads, must be turned off or placed on silent mode upon entering council chambers and that the devices could only be used with expressed permission from the council president for record-keeping purposes. Pope said at the time the rule was only applicable to city councilors and that it was a bid to avoid any Open Meeting Law violations by preventing electronic communication during a meeting.Then, on Jan. 27, resident Ned Fenstermacher attended a meeting and was using a tablet computer in the audience. Fenstermacher, who is also a plaintiff in a lawsuit aiming to stop the senior center from being built at Ward Park, was handed a note by the City Council clerk informing him that "electronic devices are not allowed in council chambers." At the next council meeting Feb. 10, he was asked to sit in the second-floor balcony to use his tablet. Fenstermacher said in his complaint that his device was on silent mode and that he was using it to view the meeting agenda.At the same meeting, other members of the audience used electronic devices without being spoken to, although Pope said she did not see them. Both city councilors and members of the audience have also used electronic devices in council chambers during committee meetings and regular meetings since.Fenstermacher filed an Open Meeting Law Complaint on Feb. 12 claiming that the council didn't understand its own rule, as his device was on silent, as stipulated in the rule.In a response to the complaint dated Feb. 28, Pope said the council’s rule on electronic devices is in compliance with the Open Meeting Law, which she wrote "requires that any person wishing to make a 'video or audio recording of an open session of a meeting of a public body’ has the duty to first notify the public body's chair, but that person shall nonetheless be subject to the chair's ‘reasonable requirements ... as to the number, placement and operation of equipment used so as not to interfere with the conduct of the meeting."Pope, who could not be reached for comment Tuesday, also wrote that on Jan. 27, she saw a flash of light from Fenstermacher’s tablet, indicating that he was taking a photograph or videoing and that he "never discharged your duty, under s. 20(e) of the OML to notify me as the President of your wish to record the meeting."Fenstermacher said in a previous email that his device does not have a flash or a front-facing lens. He said on Tuesday that he does not plan on appealing the City Council’s dismissal of the complaint to the Attorney General’s office, although he said he plans to send a letter to the council refuting some of the points in Pope's letter.Media law attorneys said this week the rule raises interesting questions over the authority of a public body to place restrictions on the use of electronic devices by members of the public. Pope has said restrictions on electronic devices do not apply to members of the press.Jeffrey Pyle, a media law attorney at Prince Lobel, said that in an age of frequent phone calls and text notifications, he thinks it’s "perfectly reasonable" for a public body to ask that electronic devices be placed on silent mode to avoid disruptions.Still, if Fenstermacher was telling the truth when he said his device was silent, Pyle said that he doesn't see how he broke the City Council rule."I have a hard time understanding how the behavior of this complainant violated the rule that the City Council has put in place," he said.Pyle said it’s important, however, for any rules to be enforced equally and for the public to have a firm grasp on what the rule is, since there is no mention in the rule about requiring electronic devices being used only in the balcony or any restriction above them being on silent mode.Media law attorney Robert Ambrogi said that while the Open Meeting Law doesn't address the use of electronic devices, it does expressly allow the recording of meetings, which is commonly done with cell phones and tablet computers."Unfortunately, the Open Meeting Law is not black and white on this issue," he wrote in an email. "I believe the law should be construed in the manner that maximizes citizen participation. If Mr. Fenstermacher is permitted under the law to use a tablet to record, then he should be able to use it for any other purpose, as long as his use is not disruptive."On the issue of the flash Pope wrote she saw coming from Fenstermacher’s tablet and his failure to notify her of an intention to record the meeting, Ambrogi said that a recent Open Meeting Law decision determined that a failure to notify a chairman about recording a meeting does not affect an individual's right to record a meeting.Kendall Hatch can be reached at 508-490-7453 or khatch@wickedlocal.com. Follow him on Twitter @Kendall_HatchMW.

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